If You Want To Ban Cannabis Smoking, Do You Have To Ban Tobacco Smoking Too?

In view of the upcoming legalization of recreational marijuana on October 17^th 2018, condominium corporations throughout Ontario have been scrambling to enact Rules that prohibit the smoking of cannabis inside units and/or the common elements. Our clients have been asking us: If the condominium wants to ban the smoking of recreational marijuana, does the condominium have to ban the smoking of tobacco as well?

Our firm’s position has been Yes – if a condominium wants to prohibit the smoking of cannabis inside units and/or the common elements, then the condominium should also prohibit the smoking of tobacco. Both substances should be treated similarly by the condominium, because both substances give rise to the same concerns that condominiums have valid jurisdiction to make Rules over; namely, concerns relating to the dangerous conditions that secondhand smoke triggers, whether from the burning of tobacco or the burning of cannabis. [1]

But some people – even other condominium lawyers – might argue that because the smoking of recreational cannabis is currently illegal under the Criminal Code, if the condominium enacts a no-smoking Rule before October 17 ^th 2018, then the condominium can ban the smoking of cannabis only, without also banning tobacco.

Simply put, our firm’s position is that banning only the smoking of cannabis via the enactment of a Rule, without banning the smoking of tobacco, exposes the condominium to the risk of a legal challenge by a unit owner (or a resident, if such resident is enforced against by the condominium in reliance upon that cannabis-only Rule).

Rule Jurisdiction

Recall that Section 58(1) of the Condominium Act, 1998, S.O. 1998, c. 19 (the “Act”) requires that any Rule enacted by a condominium must be to:

“ (a) promote the safety, security or welfare of the owners and of the property and the assets, if any, of the corporation; or

(b) prevent unreasonable interference with the use and enjoyment of the units, the common elements or the assets, if any, of the corporation. ”

There is no room for moral qualms or reactionary outrage against the federal government’s legalization of recreational marijuana under Section 58 of the Act. A condominium Rule must strictly be in relation to the safety, security or welfare of the owners and of the property, or to prevent unreasonable interference with the use and enjoyment of the units and common elements.

Sure, secondhand cannabis smoke may have a stronger short-term intoxication effect for certain people who are exposed to such secondhand smoke (though it could also be argued that tobacco also has short-term psychological or pharmacological effects). But the mind-altering effects of secondhand cannabis smoke does not by itself trigger the condominium’s Section 58(1) jurisdiction to enact a Rule to govern same. It is only if the intoxication poses a threat to the safety, security, or welfare of owners or unreasonably interferes with the use and enjoyment of the property, that the condominium’s Rule jurisdiction may be invoked.

Similarly, condominiums are not able to enact Rules about how intoxicated an individual may choose to become by consuming alcohol in the privacy of their own unit – it’s only if that intoxicated individual stumbles through the party room and starts knocking into things or people that the condominium’s Rule jurisdiction is triggered. Hence why some condominiums may have a Rule against the consumption of alcohol in the party room or BBQ area.

Unlike alcohol, it is secondhand smoke’s harmful health effects on individuals, and secondhand smoke’s long-term damage to walls, ceilings, furniture, hallways, and other property which invokes the condominium’s jurisdiction to restrict smoking via the enactment of a Rule. This secondhand smoke, whether the smoker wants it to or not, will often permeate outside of the boundaries of the smoker's unit and will penetrate into the common elements and/or other neighbouring units. Whether the harmful secondhand smoke is being generated by the burning of tobacco or the burning of cannabis, is irrelevant. What is relevant, is the fact that even though the smoker is smoking inside their own unit, their activity is causing harmful health effects and property damage to others.

Rule Reasonableness

Also recall that Section 58(2) of the Act requires that all Rules “ shall be reasonable and consistent with this Act, the declaration and the by-laws. ” This does not mean that the Rule must be reasonable only at the time that it was enacted.

It is an ongoing requirement that the condominium’s Rules must be reasonable, if they are to be enforced by the condominium. Many Rules in older condominiums are clearly outdated now, and out of step with the changes to the Act or the changes in society's values over the decades since those Rules were last amended. For example, some older condominiums may still have Rules prohibiting children from using certain recreational amenities – if such an outdated Rule were to be enforced today, a court would likely decline to enforce it and instead declare the Rule to be unenforceable due to a lack of reasonableness, primarily on human rights grounds.

Sure, the condominium could, between now and October 17 ^th 2018, enact a cannabis-only prohibition in its Rules, and rely on the argument for now that smoking cannabis recreationally is illegal and therefore not allowed. But once October 17^th 2018 rolls around, smoking cannabis recreationally will no longer be illegal, and thus will be placed on the same legal footing as tobacco as far as the condominium’s Rule jurisdiction is concerned.

After October 17^th 2018, a condominium Rule that bans only the smoking of cannabis without banning the smoking of tobacco, is vulnerable to a legal challenge on the basis that such a Rule lacks reasonableness because it treats smoking tobacco differently from smoking cannabis, even though the condominium’s concerns about secondhand smoke are the same for both substances.

Moreover, pursuant to Section 58(8) of the Act, a condominium cannot amend a Rule “ that has substantially the same purpose or effect as a rule that the owners have previously amended or repealed within the preceding two years ” unless a majority of owners approve of said amendment at a special meeting. So if the condominium’s Rule that only bans the smoking of cannabis was enacted before October 17 ^th 2018, and it amended or repealed an existing Rule that prohibited smoking on the common elements, and on October 17^th 2018 the condominium wishes to amend their Rule to include a prohibition on smoking tobacco in order to make the Rule more “reasonable” post-legalization, the condominium is precluded from doing so by the 2-year cooling-off period under Section 58(8) of the Act – making the cannabis-only Rule vulnerable to being overturned by a Court within the 2-year period, which would then leave the condominium without any smoking prohibition in its Rules at all.

Cautionary Tale

Legal challenges to cannabis-only bans are likely on the horizon. Throughout the province, unit owners and residents are already locked into heated debates with each other about whether to ban the smoking of cannabis, the smoking of tobacco, or to ban both altogether.

In one condominium in Toronto, unit owners have started gathering signatures for a Requisition calling for a vote on the proposed cannabis-only Rule, and have even claimed to have hired one of the best civil litigators in the City to work on their case pro bono, in order to bring a court challenge to the legality of the cannabis-only ban.

Only time will tell whether the Courts will vindicate the longstanding position that our firm has taken once the federal government announced that it was legalizing recreational marijuana: If you want to ban cannabis smoking via a condominium Rule, then you have to ban tobacco smoking as well.

All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this newsletter is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.

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